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SUPREME COURT SAYS LAWYERS MUST INFORM CLIENTS OF IMMIGRATION CONSEQUENCES

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Article 16-26

¡No Se Deje!

The Sixth Amendment to the U. S. Constitution gives every person accused of having committed a crime the right to be represented by an attorney.  If the punishment for committing the crime includes incarceration (jail or prison), the accused has a right to have an attorney provided at no cost if he cannot afford one.  Every person, regardless of citizenship or immigration status, including undocumented immigrants, is entitled to these constitutional protections.

 

The courts have appropriately interpreted the “Right to Counsel”, or right to be represented by an attorney, to require “Effective Assistance of Counsel”.  This means that the attorney must make competent decisions and conduct the defense in a manner that uses the law and legal procedures to achieve the best results for his client.  This necessarily means that at a minimum, he must inform his client of the consequences of a conviction after a trail or by pleading guilty.

 

José Padilla had been a lawfully admitted permanent resident for 40 years, and a veteran of the Vietnam War, when he was arrested on marijuana charges.  He insisted that his attorney assured him that he would not be deported if he pled guilty because he had been in the country for so long.  This is simply not true.  Mr. Padilla pleaded guilty, relying on the erroneous immigration advice his lawyer gave him.  When faced with deportation, he appealed his criminal conviction and asked to withdraw his guilty plea.

 

State prosecutors argued that criminal defense attorneys are only required to inform their clients of the direct consequences of pleading guilty.  They insist that this only includes matters such as the amount of jail or prison time, fines, probation and the like.  They insist that deportation consequences are indirect consequences and need not be explained to criminal defendants by their attorneys.  The appellate courts agreed with the state prosecutors.

 

The U. S. Supreme Court ruled in favor of Mr. Padilla that criminal defense attorneys must inform their clients of the immigration consequences of being convicted of the charges.  Unless this is done, the accused has not been given effective assistance of counsel.  The Court stopped the deportation and sent the case back to the state court to determine if Mr. Padilla was prejudiced by the bad advice from his attorney.

 

If Mr. Padilla had been informed that pleading guilty would result in mandatory deportation, he may have consulted an immigration attorney to explore other options.  Sometimes prosecutors can be persuaded to change the accusation or the sentence so that deportation is not required.  If Mr. Padilla had become a U. S. citizen, he would never be subject to deportation for any crime.  ¡NO SE DEJE! ®

 

Jess J. Araujo, Esq.